Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 596333

Date of Birth: REDACTED

Record Close Date: October 2, 2023

Hearing Requested by: Parent

Dates of Hearing: 3/20/23 – prehearing conference

6/16/23

7/20/23

Hearing Officer: Israel S. Wahrman, Esq.

Background and Positions of the Parties

On February 16, 2023, I was appointed by the school district as Impartial Hearing Officer (IHO), pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) in this matter. I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. A preconference was held on 3/20/23. The hearing took place on the following dates: 6/16/23 and 7/20/23. Extensions of the compliance date were granted by this IHO due to availability of witnesses, time for getting transcripts, for the parties to write their closing documents and for writing the decision by this IHO.

This case concerns a suspension of a special education student with the disability of autism, who was suspended due to an infraction as described below, and the suspension was carried out in full, as it was found by the district’s Manifestation Determination Review (MDR) that the student’s behavior that resulted in the suspension was not a manifestation of the student’s disability. The parent view is that the behavior that resulted in the suspension was in fact a manifestation of the student’s disability and therefore the student was improperly kept out of school, away from education and services. The parent therefore requests compensatory education and services and expungement of the suspension from the student’s record. IHO Exhibit II. The district’s position is that the conduct in question was not a manifestation of the disability so that the suspension was justified and therefore all requested relief should be denied. IHO Exhibit I.

Findings of Fact and Conclusions of Law

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. Clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. In a recent decision, the United States Supreme Court clarified that an IEP must be “reasonably calculated to enable a child to make progress in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017).

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies - (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 (SDNY 2007) aff’d 2008 WL 3852180 (2d Cir. Aug. 19, 2008):

Procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents — meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP — constitute a denial of a FAPE.

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

In determining who is right in this dispute, I as the Impartial Hearing Officer must follow the preponderance of the evidence. As expressed by the Second Circuit in the case of A.M. v. New York City D.O.E. (2017), describing the reasoning of an earlier Second Circuit case:

… R.E. stands for the unremarkable proposition that, when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207, and the state's determination to the contrary is thus entitled to no deference because it is unsupported by a preponderance of the evidence. See C.F.,746 F.3d at 81 (holding that the IEP's failure to provide a 1:1 classroom resulted in the denial of a FAPE because "the testimony and reports indicat[ed] that [the child's] needs required a 1:1 placement," thereby rendering "such instruction. . . a necessary component of any plan ‘reasonably calculated to enable the child to receive educational benefits'" (quoting R.E., 694 F.3d at 190)). This remains true whether the issue relates to the content, methodology, or delivery of instruction in a child's IEP.

With regard to compensatory education, in the second circuit, it is established that “IDEA allows a hearing officer to fashion an appropriate remedy, and we [i.e., the Second Circuit] have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. v. Newington, 546 F.3d 111 (2d Cir. 2008)[internal citations omitted].

Ordering compensatory education is not a mechanical matter, where a student gets one hour for every hour missed of compensatory time, nor any other such formula. Rather, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than a mechanistic formula, “the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place.” Reid v. District of Columbia, 401 F.3d 516 (DC Cir. 2005), 524. Note that Reid was cited by the second circuit in Newington, in reaching its own conclusion that compensatory education is an option. Reid, Supra., emphasizes that compensatory services are equitable relief; they are not a contractual remedy.

Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount of services missed so that the services can be made up through compensatory education. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) ; Manchester Sch. Dist. V. Christopher B. 807 F. Supp. 860 (D.N.H. 1992).

Compensatory services can take many forms, as the point is to provide services that will make the student whole, with regard to the educational deprivation that the student has experienced. In Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008), at 1284, the court concluded that “the provision of a public-school option does not preclude an award of placement in a private school by a court,” as compensatory services. The decision also explains that a “disabled student is not required to demonstrate that he cannot be educated in a public setting.” Ibid., at 1285. The court further explained that whereas an educational program must be” reasonably calculated to enable the child to receive educational benefits, “quoting Rowley, 458 U.S. at 206-07, when it comes to compensatory services, more than that is required; i.e., in the words of the Draper decision, “… compensatory awards must do more, - they must compensate. ... Compensatory awards should place children in the position they would have been in but for the violation of the Act. [IDEA]” Ibid., at 1289.

Furthermore, the Draper court explained that IDEA does not “foreclose a compensatory award of placement in a private school.” And when such an award is considered, the parent is “not required to prove that the School System was incapable of providing … an appropriate education.” Ibid., at 1286.

The procedures regarding manifestation determinations are laid out in 8 NYCRR 201.4. In 8 NYCCRR 201.4 (c)(2), the New York State regulations state that:

The manifestation team shall review all relevant information in the student’s file including the student’s IEP, any teacher observations, and any relevant information provided by the parents to determine if:

1. The conduct in question was caused by or had a direct and substantial relationship to the student’s disability, or

(2) The conduct in question was the direct result of the school district’s failure to implement the IEP.

Here, the contention of the parent is that the behavior was a manifestation of the disability while the district argues that it was not.

Let us examine what occurred here.

As documented by a school social worker, the student told her that “I was thinking of buying a gun for a small price. … [The student reportedly started to bring a knife to school that morning] “to kill everyone in my path.” But there is no allegation that the student actually brought a knife to school. The student reportedly stated, “I wish I could kill everyone and myself to teach them a lesson.” The student reportedly stated that this was because other students had been bullying him. Reportedly, the student also said, “I’m also thinking of targeting more people to assassinate them.” Reportedly the student also created a list that included the names of more than twenty students regarding whom the student stated, “I wish I can target…” Exhibits N, O.

The social worker to whom the student confided these feelings interpreted this student’s expression of these reported feelings as “homicidal ideation with intent and plan.” Exhibit N. Having drawn this conclusion, that there was homicidal intent and plan, the social worker passed this conclusion on to others, and this resulted in the student’s suspension, via a notice sent October 7, 2022, with regard to the student’s conduct that occurred on October 6, 2022. Exhibit T.

There was testimony from professionals who were familiar with the student. A special education teacher who taught the student over multiple years described the student’s behavior as typical of students with the disability of autism, noting that she had never witnessed suicidal or homicidal behaviors before by this student. Tr. 36, 43. So she supported the determination of the MDR that the conduct was not a manifestation of his disability since “I did not see any evidence of that in the classroom.” Tr. 43.

Similarly, a speech therapist who had worked with the student for years testified that the student has deficits in expressive and receptive language, and he displays behaviors typical of students with autism. She believed that as this student had never expressed a willingness to hurt himself or others, so she supported the determination that the reported conduct was not a manifestation of his disability. Tr. 184, 185, 191.

Seemingly underlying all of the above conclusions, however, is the notion that this student had in fact expressed intent to carry out homicidal conduct and had a plan to do so. Is that truly what happened here?

What I see from the evidence before me is that this student was thinking about the idea of killing other students or himself and speculating regarding how a homicidal attack might be done. Where did the student state that this was his actual intent? I do not see this in the evidence. What the student actually did was that he went, of his own volition, to see a member of his school’s clinical staff, as he was advised to do when upset at the CSE meeting of 9/29/22 as reflected in the meeting minutes: “… [The student] said he would like to make friends but other students are not friends - … [The student] comes home sad from school – school staff did not know … [The student] was sad … we will encourage … [the student] to tell teachers how he is feeling.” Exhibit S at 1. Following the student’s verbal expression of how he felt on October 6, 2022; i.e., they felt that he wanted to kill others or himself because of his perception that he was being bullied, he got suspended, based on an interpretation of his expression of his feelings that he actually intended and had a plan to commit a homicidal act.

When a person, who is not a special education student, is very upset about having been wronged repeatedly, and the person then confides to a confidant that they feel like they want to kill others (e.g. if a person says, “I want to kill …”), is that truly a threat to kill? Certainly, not necessarily; rather, such expression might simply be an expression of how the person feels. Here, we have a student with a disability, autism, with expressive language issues as it typical of those with autism. This student did as he was told to do, he went to a social worker in the school for support, to express his feelings. Why would we assume that expressing such feeling of being upset in the way this student did, using language of killing others and himself, mean that this student was actually intending to commit homicide? Why was this interpretation made without an inquiry to determine if in fact there was actual intent to kill others and an actual plan? If there was such an inquiry here, it is not reflected in the evidence before me.

And it appears that this was not the first time that this student had expressed his feelings in this way. In a prior incident, this student was upset because he was missing something and blamed other students for “stealing” his property. “He began yelling, I am going to blow up the school.’” As summarized in the Behavior Detail Report of the school district regarding this incident, “Student’s CSE meeting … confirmed that he requires autistic services and will be in an 8:1:1 class… Mom said doctors stress that he does not understand what he means [when] he says words… It does not seem that he understands the severity of saying such things. …” Exhibit R. This student was not suspended on this previous instance of expressing language threatening to do harm to others, in that case threatening to blow up the school; rather, the comment was recognized as an expression of this student’s feelings. It is not entirely clear to me why with this October 6, 2022 incident, a similar conclusion was not drawn, with the result being referral for clinical intervention rather than suspension from school. The school psychologist who explained that she has the responsibility of conducting the Manifestation Determination reviews for the school district, Tr. 64, and conducted the review for the case of this student, explained that this student used the term “bullying” to describe how he felt, i.e., “he was expressing rejection and sadness about his social relationships and just desiring to have friends and the lack of reciprocity.” Tr. 161.

In its definition of disability, the CDC emphasizes that “Two people with the same disability can be affected in very different ways.” Disability and Health Overview, CDC.gov.

So, while as far as I know this student did not typically talk about homicide or suicide in front of staff, that does not mean that this student with autism could not use an expression regarding homicide or suicide, as was the case here, at times, to express how upset he was.

In fact, if school personnel were concerned about the expressed feelings about homicidal acts being a danger, I wonder why they were not equally concerned about the expressed feelings about suicidal acts. Instead of a suspension, might not a clinical referral have been more appropriate?

In fact, the Crisis Prevention and Response Team of the school district conducted a Threat of Violence Assessment following the very conduct that resulted in the suspension. Exhibit J. As summarized in this report, it was noted that this student “self-disclosed” to a school social worker a desire to harm himself and others. “I wish I can target…” The report concluded that REDACTED obtained a rating of medium risk on the Columbia Suicide Severity Rating Scale. Exhibit N. The following conclusions, I believe, are noteworthy: “… [This student] has not demonstrated an ability to organize behavior. He does not present with the ability to plan and or carry out an act of violence.” It is further noted that that the “family and family physician reports that there is no access to weapons, and they do not believe … [this student] has the ability to gain access to lethal weapons.”

The Threat of Violence Assessment conducted by personnel of the school district concluded with the following Summary statement:

,,, [this student] is low risk of concern. While he has some static risk factors, there is no identifiable threat of violence or disruption. While communication … [on the] date of offense was noted to cause concern, it is appears to be clinically related to his diagnosis specifically his deficits in social-emotional reciprocity, ranging , for example, from abnormal social approach and failure or normal back-and-forth conversation; to reduced sharing of interests, emotions, or affect; to failure to initiate or respond to social interactions.

Ibid., at 5.

There was also a letter from a pediatrician personally familiar with this student and his disability in which this physician noted that this student “displays echolalia and has verbalized intense feeling of frustration and rejection. [This physician then concluded,] Whereas he displays these emotional concerns, this writer believes he has no access to tools that would bring harm to himself or others.” Exhibit I.

It does not appear that the psychologist who conducted the MDR took to heart the views and conclusions of the Threat of Violence Assessment conducted by professional personnel of the school district or of the letter from the pediatrician. See Tr. 101, 112-115.

As noted above, state regulations require consideration of all relevant information. Certainly, the findings of the Crisis Prevention and Response Team, as reflected in the Threat of Violence Assessment, were relevant as was the view of the student’s personal physician.

I find that the student’s conduct did not clearly express homicidal intent or an actual homicidal plan that the student intended to carry out. And the feelings expressed, by use of homicidal language, were likely just that, expression of feelings and concerns, as expressed by this student with autism, a disability that includes expressive language difficulties. I therefore find that the student’s conduct was reflective of his agitated state and of his disability.

As the student was deprived of education and services during the period of suspension, when the student could and should have been in school, a violation of IDEA, this student should receive compensatory education and services to make up for what was lost thanks to the continuing suspension.

As the suspension should not have occurred, as stated in Re.: Student with a Disability, New York State Educational Agency, 172864, LRP 42934, at 2, “all reference to the suspension should be expunged from the Student’s record.”

Order

Compensatory education and services shall be provided to make up for the education and services not provided to this student while he was suspended without alternative instruction during the Fall 2022 semester. All reference to this student’s suspension shall be expunged from his school records.

Dated: October 4, 2023 Israel S. Wahrman

Israel S. Wahrman, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.